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Sotomayor Earns Another Scolding As She Breaks From Majority In Railroad Case

Sonia Sotomayor has distinguished herself in her four years on the Supreme Court by writing well-reasoned opinions that have sometimes surprised her critics on the right with their understanding and sympathy for business interests.

But this child of the Bronx who muscled her way into Princeton on raw intellectual power has another side: Rebel. For the second time this year, Sotomayor has broken with the majority and issued a dissent, which in turn drew withering counterfire from her longer-serving colleagues on the court.

The case, Marvin M. Brandt Revocable Trust v. U.S., is one of those amusing oddities that bubble up to the Supreme Court every session, involving obscure elements of federal law covering railroad land grants from the 19th century. The majority held that those grants were the equivalent of easements which ceased to exist after the railroad abandoned its rights to the land.The government argued it still retained an interest in the land, and was seeking to preserve public access created under the “rails-to-trails” program.

With a clarity which rarely appears in legal rulings, Chief Justice John Roberts said: “The Govern­ment loses that argument today, in large part because it won when it argued the opposite before this Court more than 70 years ago, in the case of Great Northern Railway Co. v. United States.”

That drew a strong dissent from Sotomayor, who accused Roberts and the rest of the justices of getting Great Northern wrong. That case was about the mineral rights beneath the railroad land grant, she said. The railroad company wanted to drill for oil and the U.S. government argued it had only conveyed the surface rights to the railroads when it granted millions of acres, checkerboard-style, to the railroads so they could lay down their rails and finance their expansion by selling excess land to settlers.

“The court errs,” Sotomayor wrote in her own blunt prose, “in two ways.”

First, the court ignores earlier rulings that held the federal government retained a “reversionary interest” in the land after railroads abandoned it. (Think of a reversionary interest as the right to something if the current possessor ever gives it up.) Second, she said, the majority relied on “basic common law principles” when the railroad land grants represented “sui generis property rights not governed by the ordinary common-law regime.”

Take that! Her dissent reads like a professor’s takedown of a negligent student, and concludes by warning that today’s decision undermines the legal status of thousands of miles of public recreational trails on former railroad rights of way.

“Challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars,” she said.

Roberts didn’t think much of Sotomayor’s legal scholarship in this case, saying in a footnote that even the government didn’t adopt her interpretation of Great Northern, “and for good reason.”

The Govern­ment’s argument here is that it gave away more in the land grant than an easement, so that more should revert to it now. A principle that ambiguous grants should be construed in favor of the sovereign hurts rather than helps that argument.

Sotomayor drew a similarly tart rebuke from Justice Ruth Bader Ginsburg in Daimler v. Bauman earlier this year. In that case, Sotomayor accused the majority of deciding a question that wasn’t before the court when it threw out a lawsuit by victims of Argentinian repression in a California court. Ginsburg, in a footnote, accused Sotomayor of”selectively referring to the court record,” and even worse, misinterpreting a key Supreme Court precedent regarding the business contacts needed to establish jurisdiction over a company by a given court.

This isn’t the first time another Justice has singled out Justice Sotomayor for misstating the record. In the Court’s DIG of Boyer v. Louisiana, Justice Alito, joined by Scalia and Thomas, notes that Sotomayor’s dissental gets the record wrong.

I’ve only got one-third of a law degree but the Sotomayor decisions I’ve read have struck me as clear-headed, well-researched and based on the pragmatic understanding of the limits of judicial power I like to see in a judge. Apparently her colleagues don’t always agree.

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I don’t understand Sotomayor’s point about Northern Pacific v. Townsend or Rio Grande Western v. Stringham, which were both disputed and resolved before the Railroad Right-of-Way Abandonment Act was passed. Once that was passed decisions in conflict with it become basically void, so while those cases may have stated that the Federal Government has a reversionary interest (didn’t read them, I’ll take her word for it) they cannot be used as basis for a current ruling when the Railroad Right-of-Way Abandonment Act states abandoned rail grants “be transferred to and vested in any person, firm, or corporation, assigns, or successors in title and interest to whom or to which title of the United States may have been or may be granted, conveying or purporting to convey the whole of the legal subdivision or subdivisions traversed or occupied by such railroad or railroad structures of any kind as aforesaid.” (43 U.S. Code § 912)

I don’t get to follow the courts as much as might interest me, but as someone with zero-thirds of a law degree it appears her entire dissent is based on poor reasoning (at best). The majority came to the right conclusion and the government wasted a lot of our money pursuing a case, the point of which was to rip someone off over a 30 year old land swap.

Keep this up and we’ll both get busted for the unauthorized practice of law! The 1922 law you cite makes an appearance in the decision but Roberts says that’s just one of several Congress passed that don’t affect the original nature of the property right, which was an easement. He then cites common law to hold that easements are extinguished upon abandonment. Which Sotomayor took issue with.

As someone with three-thirds of a law degree, magna cum laud, plus 32 years of practicing law, including many years dedicated primarily to real estate law, I can tell you that Sotomayor’s dissent is largely nonsensical. Yes, it is completely contrary to the Railroad Right-of-way Abandonment Act, and her feeble attempt to limit Great Northern to only dealing with oil and gas or mineral interests is completely unwarranted by either the briefing in that case by the Government or the opinion itself. But, worst of all, her claim that railroad right-of-ways should not be governed by common law principles of real property, and they are somehow “sui generis”, displays an appalling ignorance of property law. If she had written that material on a final in Property Law I as a first year student, she would have earned no more than a C in a Law School where the policy was to pass everyone. She claims, quite erroneously, that a RR ROW can’t be a simple easement because of its “unique” (?) characteristic of exclusive possession. But this ignores (or demonstrates complete ignorance of) the fact that there are a great many kinds of easements, for all kinds of different purposes, many of which include, to a greater or lesser degree, exclusive rights of possession. I know of an Office Building in Downtown Dallas where the Building Owner does not own about 2/3 of the subsurface, which had been deeded to the Rapid Transit Authority for a station. Yet the Building owner has multiple easements through that subsurface area, each in the shape of a vertical cylinder, for the purpose of constructing and maintaining support pillars to support the building. Each of those easements contemplates that the easement holder will have exclusive possession and control of the easement area so long as the building stands, but that, when the building is demolished and the concrete collumns no longer needed for support, the easements will be abandoned and the exclusive right of possession will revert to the owner of the subsurface. Sotomayor’s claim that RR ROWs are somehow unique and should not be governed by common law property concepts is badly misinformed. The Majority Opinion was, if anything, too kind to her.